Imagine that you have a 70 IQ. Imagine that you have a personality disorder where you see visions, have limited emotional range, believe you have telepathic powers, feel anxious in social situations, and your only friends are your close relatives. Imagine you have a poor memory for details and dates, are highly suggestible and often yield to questions so as to please the people you do talk to. Imagine you have been on antidepressant and pain medications since 1991.
Now, imagine that 12 police officers and detectives from New Jersey and New York knock on your door one day. They ask you to accompany them to a police station for questioning after they take your cell phone, wallet and medications. Once there, they escort you to a small windowless room called “Line-up 133.”
Now, would you have asked for a lawyer? Most people would have asked for a lawyer much earlier.
But Pedro Hernandez is not like most people. He has been diagnosed with schizotypal personality disorder by multiple psychiatrists and psychologists.
Hernandez is at the center of the case of Etan Patz, a 6-year-old boy who went missing in New York City on May 25, 1979. In 2012, Hernandez was charged with kidnapping and murdering Etan. On May 8, 2015, a jury was hung 11-1 and a mistrial was declared. On June 10, a judge will determine if there will be a retrial.
Does having schizotypal personality disorder mean that you cannot kill someone? No. Does having schizotypal personality disorder mean that you are more likely to kill someone? No. But it does fit with making someone more susceptible to providing a false confession.
In 2012, police questioned Hernandez for many hours with few breaks to rest. Police did not read him his Miranda rights until after nearly seven hours of questioning. The police also did not video record the initial seven hours of questioning. They turned on a video recording device only after Hernandez made his confession and was signing a sheet to waive his Miranda rights.
Police have every right to question suspects and are even allowed to use ploys and deceptive techniques to get someone to confess to crimes. They can also use statements from other suspects or witnesses to apply pressure on a suspect. I think police used every possible means within their rights to obtain a confession from Hernandez that linked him to Etan’s disappearance and murder.
They escorted his ex-wife, Daisy Hernandez, past Line-up 133 so that Pedro Hernandez knew she was at the station. They told him that she knew things about him. Although, sadly, there is no video evidence of the initial questioning, it was testified to in court by the detectives that they used techniques that would play on Hernandez’s deep religious convictions and the physical abuse he suffered at the hands of his father.
They told him that they were there to help him and that he could go home when they had finished their questioning. During the first seven hours of questioning, detectives confirmed that Hernandez asked to go home three times and they told him, “You are free to go, but we just have a few more questions for you.” And of course, many of the detectives said in court that Hernandez was very compliant and cooperative.
After carefully reviewing the testimonies of all the New York Police Department detectives and Camden County police officers, my fellow jurors and I produced a timeline to try to reconstruct the initial seven hours of questioning to determine when and if the interview turned into an interrogation.
We agreed that when the detectives brought out Etan’s missing-child poster, this is when their questioning started to become more of an interrogation.
It is not clear exactly when they started to accuse Hernandez of kidnapping and murdering Etan, but it is certain that they did not give him the right to remain silent; the right to an attorney and to have that attorney present during questioning; and the warning that anything he says can be used against him in a court of law.
This matters. Since 1966, Americans are entitled to the Miranda warning – a right to silence when held in police custody before interrogation.
When the video recording of the interview was finally switched on, we see Hernandez sitting in a small white room. He is in the corner with three detectives surrounding him at a table. We see and hear the detectives reading him the last part of his Miranda rights and then Hernandez initialing each right so as to waive them. It is clear that Hernandez is not reading the words on the paper he is initialing.
One of the detectives then says, “Thank you, Pedro. Thank you. That’s the strength of the Lord. That’s the strength of the Lord.” Another detective uses a steno pad to write Hernandez’s statement. What is written as Hernandez’s statement is not totally accurate and includes an important phrase he never says: “I am here voluntarily.” When the statement is completed, Hernandez does not read it, but he does immediately initial each page.
The job we were charged with as jurors was to be the “judges of the facts.” We were instructed to begin the trial with the presumption of innocence — that the burden of proving guilt rested with the prosecution, and that we could vote only guilty or not guilty. We were also instructed about reasonable doubt and told that it is the threshold beyond which you are certain there are no other reasonable explanations for what could have occurred. We were told that a person cannot be convicted of a crime based only on his or her own words, and that the prosecution must first prove that the crime took place and that the person charged in fact committed the crime. We were informed that we were to hear every piece of evidence during the trial and then go into deliberations where only we could discern facts based on the evidence we heard and saw in court.
We were then to draw inferences from these facts based on our life experience to piece together the story and come to a decision about what happened. We had the right to change our decision as many times as we needed before reaching our own final decision. Finally, we were to vote our conscience and stick to our principles regardless of how many people voted the same way and regardless of what people in the courtroom and public may feel or think.
There were four main factors that prevented me from voting Hernandez guilty:
• First, the vulnerability of Hernandez to make a false confession and form a false belief about his association with the event.
• Second, the weakness of the evidence presented by the prosecution outside of the confessions.
• Third, the possibility that Jose Ramos committed the crime. Ramos is a convicted pedophile. He has denied involvement in Etan’s disappearance. But he dated the woman who walked Etan home from a bus stop during the weeks leading up to his disappearance. Ramos was also sexually abusing this woman’s son, who was in a play group with Etan at the Patz residence. Ramos admitted to a federal attorney that he was 90% certain that he had tried to abuse Etan on the morning of May 25, 1979, but that he had sent him to his aunt’s home in Washington Heights on the subway. But the Patz family has no relatives in Washington Heights.
• And fourth, the fact that Hernandez has never committed any violent crime, before or after May 25, 1979.
Furthermore, there were three important pieces of evidence that were either not admissible or not presented in court, so we never heard about them until after the trial.
• The prosecutor told all of us in the deliberation room after the trial that in 1979, New York City’s SoHo neighborhood had hundreds of pedophiles. However, in court the prosecutor made the case that SoHo was a much safer place, where children could play in the street.
• The prosecutor also told us that the reason for the excavation at a basement near the Patz home in 2012 was to follow up on information they found that Othniel Miller had abused children. In court, the prosecutor said that Miller was a friendly neighbor and that Etan would work with him in his basement. It is Miller who gave Etan the dollar he would use the next morning to buy the soda he had wanted. Had we been told that Miller was accused of pedophilia by his ex-wife (though never convicted), we may have had different opinions about the likelihood of Hernandez committing the crime. Miller has denied his ex-wife’s accusation. He has also denied involvement in Patz’s disappearance.
• And finally, the fact that Stan Patz, Etan’s father, had pursued Ramos for decades and was awarded $2 million in a civil suit was a critical piece of evidence that we did not hear in court. While my heart goes out to the Patz family, it would have been very helpful to have known about this fact.
I have the utmost respect for the New York Police Department and the district attorney’s office. I admire the fact that police put their safety on the line to protect citizens. The questioning of Hernandez was led by detectives with impressive experience in conducting hundreds, if not more than a thousand, interrogations combined. They are intelligent, experienced interrogators and know how to use a suspect’s weaknesses to obtain a confession. Their skills in obtaining confessions are not an issue.
The issue is whether a man like Hernandez, with his history of mental health illness, low intelligence, poor memory and suggestible nature, could provide a false confession when put under this form of questioning and when custody had not been established.
Testimony from experts confirmed that 5% of confessions are false and that the average length of time for any interrogation is an hour and a half. Hernandez went through at least nine hours of interrogation in 2012 with only a short nap on a bench at the police station in New York City. Mental health expert witnesses for both the prosecution and defense said false confessions do happen, especially in situations like this.
What if that was what happened in the case?